Eubanks vs. Dobbs, Adm'r, 4 Ark. 173

By the Court, Dickinson, J. There are several bills of exception taken during the progress of the trial, which we deem it unnecessary to discuss, as the main points in the cause arise upon the instructions. The record is encumbered with much useless matter; there are but few principles of law applicable to the case, and those are simple, and every way familiar. The plaintiff sought to charge the defendant, upon the ground that he had received the notes and other property sued for, during the life of the intestate, who was proved to be his father; and that he had converted the same to his own use and benefit.

Will the action lie? Upon this point, there can be no doubt. The executor or administrator might bring trover for the wrongful conversion of the property of his testator or decedent. The defendant, in the present instance, endeavors to discharge himself, by producing an acknowledgment of satisfaction, in the receipt of his father for the value of the property. The plaintiff attempts to avoid this conclusion, 1st, upon the ground of insanity; and, 2d, upon that of fraud.

The Judge who tried the cause has expressly decided, that the administrators would have a right to recover, although the proof established the fact that the receipt was given in fraud of the rights of creditors.

In this there is certainly manifest error; and the instruction being every way material and important, for the direction and government of the verdict, of course we are authorized to presume, that it must have had considerable weight and influence in determining the cause. |lt is perfectly clear, that, if the proof showed that if it was executed in fraud of the rights of creditors, then neither the party executing it, nor his administrators, nor any claiming under him, could take advantage of that fraud.

To allow them to do so, would be to encourage, fraud instead of suppressing it, and hold out the strongest temptation for its perpetration. The maxim is, that no one shall take advantage of his own wrong: much less, of his own fraud. While the fraud violates and destroys the contract, as respects the rights of third persons, or creditors, still the argument is rightly held to be binding between the parties themselves. And, unless this was the rule, the rights of creditors, or third persons, could not be protected or secured against fraudulent devices.

The universality of the rule is only equalled by its importance; and, therefore, when the Court below instructed the jury, that the fraud of the deceased could be made to benefit his estate, he certainly contravened a principle of natural and municipal justice, which is recognized bj all the authorities, and enforced by courts, with the most rigid exaction. It is certainly true, that if the deceased, at the time of executing the receipt, was disqualified, from insanity or imbecility of mind, of course neither he in his lifetime, nor those who succeeded him, are bound by any such pretended contract.

Insanity or imbecility of mind destroys the will of the contract, and takes from it its binding efficacy and force. There can be no volition where there is neither judgment nor consent; and him who expects to take advantage of this weakness or aberration of mind, the law wisely restrains from doing so, and holds the contract a mere nullity, or no contract at all. No two things can be more widely separate than fraud and insanity. They cannot exist together; the one deserves the punishment of the law; the other, its sympathy and protection; and so they have ever' been treated.

If the receipt was given, and the party executing it knew not what he did, the law holds it a nullity ab initio. On the other hand, if it was executed in fraud, it is binding between the parties themselves and all who claim under them; and it is absolutely void and of no effect, as to creditors. This principle the defendant has been denied the advantage of. Judgment reversed, and new trial awarded.